Oneok, Inc. v. Learjet, Inc. (13-271)

argument 13-271

Oneok, Inc. v. Learjet, Inc.

Supreme Court of the United States 57 min 6 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the central dispute between Oneok and Learjet in this antitrust case?

Paul D. Clement 0:01

We'll

John G. Roberts 0:02

hear argument next this morning in case thirteen two seventy one. One oak versus Learjet. Mr.

Paul D. Clement 0:07

Cottio? Thank you, Mr Chief Justice, and may it please the court. The complaints in this case claim, as the Learjet one says, quote, defendants' conspiracy directly affected prices for natural gas. The mechanism for that conspiracy, they say, was false reporting to two common indices, GasDealy and Inside FERC. These publications take in jurisdictional and non jurisdictional sales data. and push out sales information for the entire market for both jurisdictional and non jurisdictional sales alike. That's the fundamental reason why these complaints are field preemptive. The MGA, which is found in our blue brief at page one A, gives states control over three things over the transportation or sale of non jurisdictional gas, as well as production or gathering.

Elena Kagan 0:54

Not since the new regulations, but at the at the time of these transactions, two thousand and two thousand and one. Could FERC have uh punished these retail sellers for the um for the consumers.

Paul D. Clement 1:11

They couldn't punish Justice O'Tomer retail sellers as retail s uh true retail sellers. Here, these complaints are not directed at retail sellers. They're directed at jurisdictional sellers. All ten of the defendants in this case, as the district court found a petition appendix pages eighty five to ninety eight A, are jurisdictional sellers. And yes, FERC could regulate them and indeed did regulate them. In the code of conduct, not just for their jurisdictional sales, but that code of conduct came after.

Elena Kagan 1:42

This these transactions. It did. It came in two thousand and three. Right. So so let's start with at the beginning. Mm-hmm. Could the consumers have come and complained to FERC? Absolutely. The consumers can come

Paul D. Clement 1:54

and complain to FERC and

Elena Kagan 1:55

retail consumers.

Paul D. Clement 1:56

Pure retailers, uh you know, if if there's manipulation that is directly affecting as it is here, both simultaneously the wholesale and retail market. The remedy for states or retailers is to complain to FERC and ask them to regulate. But what can't happen is what happened here, which is the state coming in and uh th through these state causes of action and directly regulating practices that are common to both the retail and wholesale markets. That's the crucial feature.

Stephen G. Breyer 2:26

That is the crucial feature, and as I'm a little bit out of date on this, but as I think and understand the briefs. Let's take El Paso. a as an example of a jurisdictional seller. It's a pipeline. It gathers gas from the field or used to And then they'd resell it. both to retail companies who give it to your house and are regulated by states. And sometimes directly to company, uh a manufacturer or a hospital, for example. Is that right so far?

John G. Roberts 3:05

Yes.

Stephen G. Breyer 3:06

I take it here we are only focusing on the thing I mentioned last, the direct sales.

Paul D. Clement 3:14

Well, Your Honor, I think that's the way that they're trying to claim their complaints are written. That's actually not how the complaints are written, as I just read. Well I've looked

Stephen G. Breyer 3:22

through the complaints, I look through their briefs, I look through your briefs, I've tried to figure this out, and the best I can do is say whether they say it accurately or not. That's what they want to talk about.

Paul D. Clement 3:33

That's what they want to talk

Stephen G. Breyer 3:34

about. Okay, let's talk about what they want to talk about. No. We have El Paso. Going in northern Arizona. Two. A manufacture. And it says, I am going to sell you a thousand cubic feet of natural gas at forty eight dollars a thousand cubic feet. You say, Oh my god. That's very high, I'm imagining very high price. I have no choice. I have to take it. But that to me is a very unreasonable price. Is there anyone I can complain to?

Paul D. Clement 4:10

So I mean I don't understand the hypothetical. If it's purely about The

Stephen G. Breyer 4:13

hypothetical is that the jurisdictional seller in a direct sale sells the gas at a price that is unreasonably high. Exactly. Is there anyone that the buyer can complain to?

Paul D. Clement 4:26

There is in that circumstance, Your Honor, because in that circumstance, if the reason the rate is high is not a common practice that affects both the reason that it is high.